Mass. case tests legal standing of surrogate, genetic mothers

By Pamela Ferdinand, The Washington Post, MD

September 6, 2001

Procedure for placing name on birth certificate is at issue

Boston – These are the undisputed facts: Marla and Steven Culliton are the genetic parents of twins, a boy and a girl, barely seven weeks old. An unrelated woman was paid to carry the embryos and deliver the babies.

All three parties agree that the Cullitons, whose sperm and eggs created the twins, should have custody. Everyone also agrees that the couple should be listed as mother and father on the birth certificate.

But it’s not that simple.

In a case that challenges the traditional definition of motherhood in Massachusetts, the state’s highest court is scheduled to hear arguments today on whether a genetic mother can and should replace a birth mother on a baby’s birth certificate. The Supreme Judicial Court ruling will determine whether Marla Culliton may be listed as the mother on the original birth certificate or if she must go to court to legally adopt her children from the woman who bore them.

A 1998 Supreme Judicial Court case on surrogacy acknowledged the rights of genetic parents to have their names placed on birth certificates. But the court did not say whether parents must go through adoption proceedings to win that right.

A lower court judge has ruled against the Cullitons, setting the stage for further clarification by the state’s high court.

At a time when reproductive medicine is outpacing public policy nationwide, legal experts say the ruling – whatever its conclusion – will contribute to an unfolding discussion of what “maternity” and “paternity” mean in the 21st century.

“When there are two possible mothers, our argument is that the intention of the parties should break that tie,” says Melissa B. Brisman, an attorney for the Cullitons, who have declined to comment.

An estimated 5,000 surrogate births have taken place nationwide in the past 20 years, according to Steven Litz, director of Surrogate Mothers Inc. in Indiana. The majority have involved artificial insemination, a process that involves a surrogate who is genetically related to the child.

But as technology improves and success rates climb, an increasing number involve gestational surrogacy – or embryo transfer – in which the woman who gives birth has no biological link to the baby, he said.

“The future of gestational surrogacy in Massachusetts is at stake f the Cullitons were to lose,” said John J. Weltman, an attorney who runs a surrogate parenting agency in Boston.

Twenty-six states have laws governing surrogacy, and individual courts have approached surrogacy-related issues on a piece-meal basis. At least four states – Michigan, New York, Utah and Washington – have criminalized paid surrogacy, while others have established strict regulations and detailed procedures for it.

Some states require genetic parents to go to court before a child’s birth to obtain a “pre-birth” order to place their names on the original birth certificate, without the name of the surrogate. Others require post-birth DNA testing before genetic parents can be listed.

The District of Columbia prohibits surrogacy programs all together, while California allows couples to establish parenthood any time after the start of pregnancy via a court petition, according to the American Surrogacy Center, a national advocacy group based in Georgia.

“Some states are finally accepting the fact that this is something that’s here to stay,” says Litz, whose agency handled hundreds of court petitions. “There’s no reason why a couple should not be able to get their names on a birth certificate if they are the child’s biological parents.”

The one-sided nature of the discussion here and elsewhere has obscured a broader debate, said Elizabeth Bartholet, a Harvard Law School professor and author of “Family Bonds: Adoption, Infertility and the New World of Child Production.”

As long as judges, and not policymakers, address issues of reproductive law, she said, the fundamental question of whether commercialization should have a place in procreation will remain unsolved.

“The problem with courts being put in this position is that they are not getting anything like a full picture,” Bartholet said. “Courts are being asked to recognize commercial surrogacy in a context that’s sympathetic to legitimization. Underlying this is whether we really should be allowing this at all”

In Massachusetts, the law does not specifically address cases in which women become mothers by having their embryos implanted in a surrogate. However, pre-birth orders allowing genetic parents to appear on original birth certificates have become commonplace, attorneys said.

The Cullitons, both of whom are in their thirties, had not anticipated any legal complications last year when they found a woman to carry their child. Marla Culliton is medically unable to bear children, and the surrogate, referred to in court as “Melissa,” is unmarried, over 21 and has previously given birth, according to court records.

“Melissa” underwent in vitro fertilization and agreed in writing that she had no intention of assuming custody or any parental rights. In exchange, she was reimbursed $12,000 in living expenses, plus $2,000 in supplemental living expenses per child.

The babies were due in September. In May, the Cullitons sought a pre-birth order compelling the hospital to list them on the birth certificates instead of the birth mother. However, a probate judge refused to grant the order, and he dismissed the case on July 12.

Adoption law, which says that birth mothers cannot legally give up their parental rights before birth, is the only applicable law, concluded Essex County Probate and Family Court Judge John C. Cronin.

“The genetic parents in this case are essentially asking this court to ignore the presumption that the birth mother is the ‘mother’ and to find that the birth mother has no rights whatsoever to the child,” he wrote. “Troubling to this court is that they seek these determinations prior to the birth of the child.”

The Cullitons appealed the decision just days before the twins were born prematurely on July 23 at Beth Israel Deaconess Medical Center in Boston. The case was subsequently transferred to the state’s highest court, and the hospital was ordered by court not to fill out the birth certificates for the children until the matter is resolved.

The couple argues that they are being denied the right to be parents of their children from the moment of their birth and that they will incur financial expense and suffer emotional pain if they are forced to go through the adoption process. They also contend that “Melissa” never possessed parental rights and is being forced to take the role of mother that she did not want.

In addition, they argue that the court should consider the fact that there is no dispute between the genetic parents and the surrogate. No one is scheduled to argue in court against the Cullitons in court today.

In their court filing, the Cullitons contend that “the time has come for this Court to embrace the impact of technology on matters of family and to examine these issues, keeping an eye out for the reproductive rights of the biological parents and for what is perhaps the most important benchmark in the law – the best interests of the child.”

The Boston Fertility Society, Boston IVF, – a fertility center affiliated with Beth Israel – and Gay & Lesbian Advocates & Defenders have filed court documents supporting the Cullitons’ case, Brisman said. It is believed that the SJC ruling could affect same-sex couples seeking to have their names listed on original birth certificates.

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